FRED RODELL
Professor of Law, Yale University
Written in 1939
“Woe unto you, lawyers! For ye have taken away
the key of knowledge: ye entered not in yourselves,
and them that were entering in ye hindered.” — Luke. XI, 52
the key of knowledge: ye entered not in yourselves,
and them that were entering in ye hindered.” — Luke. XI, 52
Contents
- Modern Medicine-Men
- The Law of the Lawyers
- The Way it Works
- The Law at its Supremest
- No Tax on Max
- The Law and the Lady
- Fairy-Tales and Facts
- More about Legal Language
- Incubators of the Law
- A Touch of Social Significance
- Let’s Lay Down the Law
In case anyone should be interested, I got my own skepticism early. Before I ever studied law I used to argue occasionally with lawyers – a foolish thing to do at any time. When, as frequently happened, they couldn’t explain their legal points so that they made any sense to me I brashly began to suspect that maybe they didn’t make any sense at all. But I couldn’t know. One of the reasons I went to law school was to try to find out.
At law school I was lucky. Ten of the men under whom I took courses were sufficiently skeptical and common-sensible about the branches of law they were teaching so that, unwittingly of course, they served together to fortify my hunch about the phoniness of the whole legal process. In a sense, they are the intellectual godfathers of this book. And though all of them would doubtless strenuously disown their godchild, I think I owe it to them to name them. Listed alphabetically, they are:
Thurman Arnold, now Assistant Attorney-General of the United States; Charles E. Clark, now Judge of the U.S. Circuit Court of Appeals; William O. Douglas, now Justice of the U.S. Supreme Court; Felix Frankfurter, now Justice of the U.S. Supreme Court; Leon Green, now Dean of the Northwestern University Law School; Walton Hamilton, Professor of Law at Yale University; Harold Laski, Professor of Political Science at the London School of Economics; Richard Joyce Smith, now a practicing attorney in New York City; Wesley Sturges, now Director of the Distilled Spirits Institute; and the late Lee Tulin.
By the time I got through law school, I had decided that I never wanted to practice law. I never have. I am not a member of any bar. If anyone should want, not unreasonably, to know what on earth I am doing – or trying to do – teaching law, he may find a hint of the answer toward the end of Chapter IX.
When I was mulling over the notion of writing this book, I outlined my ideas about the book, and about the law, to a lawyer who is not only able but also extraordinarily frank and perceptive about his profession. “Sure,” he said, “but why give the show away?” That clinched it.
F.R.
CHAPTER I
MODERN MEDICINE-MEN
“The law is a sort of hocus-pocus
science.” Charles Macklin
In TRIBAL TIMES, there were the medicine-men. In the
Middle Ages, there were the priests. Today there are the lawyers. For every
age, a group of bright boys, learned in their trade and jealous of their
learning, who blend technical competence with plain and fancy hocus-pocus to
make themselves masters of their fellow men. For every age, a
pseudo-intellectual autocracy, guarding the tricks of its trade from the
uninitiated, and running, after its own pattern, the civilization of its day.
It is the lawyers who run our civilization for us –
our governments, our business, our private lives. Most legislators are lawyers;
they make our laws. Most presidents, governors, commissioners, along with their
advisers and brain-trusters are lawyers; they administer our laws. All the
judges are lawyers; they interpret and enforce our laws. There is no separation
of powers where the lawyers are concerned. There is only a concentration of all
government power – in the lawyers. As the schoolboy put it, ours is
“a government of lawyers, not of men.”
It is not the businessmen, no matter how big, who run
our economic world. Again it is the lawyers, the lawyers who “advise”
and direct every time a company is formed, every time a bond or a share of
stock is issued, almost every time material is to be bought or goods to be
sold, every time a deal is made. The whole elaborate structure of industry and
finance is a lawyer-made house. We all live in it, but the lawyers run it.
And in our private lives, we cannot buy a home or rent
an apartment, we cannot get married or try to get divorced, we cannot die and
leave our property to our children without calling on the lawyers to guide us.
To guide us, incidentally, through a maze of confusing gestures and formalities
that lawyers have created.
Objection may be raised immediately that there is
nothing strange or wrong about this. If we did not carry on our government and
business and private activities in accordance with reasoned rules of some sort
we would have chaos, or else a reversion to brute force as the arbiter of
men’s affairs. True – but beside the point. The point is that it is
the lawyers who make our rules and a whole civilization that follows them, or
disregards them at its peril. Yet the tremendous majority of the men who make
up that civilization, are not lawyers, pay little heed to how and why
the rules are made. They do not ask, they scarcely seem to care, which rules
are good and which are bad, which are a help and which a nuisance, which are
useful to society and which are useful only to the lawyers. They shut their
eyes and leave to the lawyers the running of a large part of their lives.
Of all the specialized skills abroad in the world today,
the average man knows least about the one that affects him most – about
the thing that lawyers call The Law. A man who will discourse at length about
the latest cure for streptococci infection or describe in detail his allergic
symptoms cannot begin to tell you what happened to him legally – and
plenty did – when he got married. A man who would not dream of buying a
car without an intricate and illustrated description of its mechanical workings
will sign a lease without knowing what more than four of its forty-four clauses
mean or why they are there. A man who will not hesitate to criticize or
disagree with a trained economist or an expert in any one of a dozen fields of
learning will follow, unquestioning and meek, whatever advice his lawyer gives
him. Normal human skepticism and curiosity seem to vanish entirely whenever the
layman encounters The Law.
There are several reasons for this mass submission, One
is the average man’s fear of the unknown – and of policemen. The law
combines the threat of both. A non-lawyer confronted by The Law is like a child
faced by a pitch-dark room. Merciless judges lurk there, ready to jump out at
him. (“Ignorance of the law is no defense.”) Cowed and, perforce,
trusting, he takes his lawyer’s hand, not knowing what false step he might
make unguided, nor what punishment might then lie in wait for him. He does not
dare display either skepticism or disrespect when he feels that the solemn
voice of the lawyer, telling him what he must or may not do, is backed by all
the mighty and mysterious forces of law-and-order from the Supreme Court on
down on the cop on the corner.
Then, too, every lawyer is just about the same as every
other lawyer. At least he has the same thing to sell, even though it comes in
slightly different models and at varying prices. The thing he has to sell is
The Law. And it is as useless to run from one lawyer to another in the hope of
finding something better or something different or something that makes more
common sense as it would be useless to run from one Ford dealer to another if
there were no Chevrolets or Plymouths or even bicycles on the market. There is
no brand competition or product competition in the lawyers’ trade. The
customer has to take The Law or nothing. And if the customer should want to
know a little more about what he’s buying – buying in direct fees or
indirect fees or taxes – the lawyers need have no fear of losing business
or someone else if they just plain refuse to tell.
Yet lawyers can and often do talk about their product
without telling anything about it at all. And that fact involves one of the
chief reasons for the non-lawyer’s persistent ignorance about The Law.
Briefly, The Law is carried on in a foreign language. Not that it deals, as do
medicine and mechanical engineering, with physical phenomena and instruments
which need special words to describe them simply because there are no other
words. On the contrary, law deals almost exclusively with the ordinary facts
and occurrences of everyday business and government and living. But it deals
with them in a jargon which completely baffles and befoozles the ordinary
literate man, who has no legal training to serve him as a trot.
Some of the language of the law is built out of Latin or
French words, or out of old English words which, but for the law, would long
ago have fallen into disuse. A common street brawl means nothing to a lawyer
until it has been translated into a “felony,” a
“misdemeanor,” or a “tort”; and any of those words, when
used by a lawyer, may mean nothing more than a common street brawl. Much of the
language of the law is built out of perfectly respectable English words which
have been given a queer and different and exclusively legal meaning. When a
lawyer speaks, for instance, of “consideration” he is definitely not
referring to kindness. All of the language of the law is such, as Mr. Dooley
once put it, that a statute which reads like a stone wall to the lawman
becomes, for the corporation lawyer, a triumphal arch. It is, in short, a
language that nobody but a lawyer understands. Or could understand -–if we
are to take the lawyers’ word for it.
For one of the most revealing things about the
lawyers’ trade is the unanimous inability or unwillingness, or both, on
the part of the lawyers to explain their brand of professional pig Latin to men
who are not lawyers. A doctor can and will tell you what a metatarsus is and
where it is and why it is there and, if necessary, what is wrong with it. A
patient electrician can explain, to the satisfaction of a medium-grade
mentality, how a dynamo works. But try to pin down a lawyer, any lawyer, on
“jurisdiction” or “proximate cause” or “equitable
title” – words which he tosses off with authority and apparent
familiarity and which are part of his regular stock in trade. If he does not
dismiss your question summarily with “You’re not a lawyer’ you
wouldn’t understand,” he will disappear into a cloud of legal jargon,
perhaps descending occasionally to the level of a non-legal abstraction or to
the scarcely more satisfactory explanation that something is so because The Law
says that it is so. That is where you are supposed to say, “I see.”
It is this fact more than any other – the fact that
lawyers can’t or won’t tell what they are about in ordinary English
– that is responsible for the hopelessness of the non-lawyer in trying to
cope with or understand the so-called science of law. For the lawyers’
trade is a trade built entirely on words. And so long as the lawyers carefully
keep to themselves the key to what those words mean, the only way the average
man can find out what is going on is to become a lawyer, or at least to study
law, himself. All of which makes it very nice – and very secure – for
the lawyers.
Of course any lawyer will bristle, or snort with
derision, at the idea that what he deals in is words. He deals, he will tell
you, in propositions, concepts, fundamental principles – in short, in
ideas. The reason a non-lawyer gets lost in The Law is that his mind has not
been trained to think logically about abstractions, whereas the lawyer’s
mind has been so trained. Hence the lawyer can leap lightly and logically from
one abstraction to another, or narrow down a general proposition to apply to a
particular case, with an agility that leaves the non-lawyer bewildered and
behind. It is a pretty little picture.
Yet it is not necessary to go into semantics to show
that it is a very silly little picture. No matter what lawyers deal in,
the thing they deal with is exclusively the stuff of living. When a
government wants to collect money and a rich man does not want to pay it, when
a company wants to fire a worker and the worker wants to keep his job, when an
automobile driver runs down a pedestrian and the pedestrian says it was the
driver’s fault and the driver says it wasn’t – these things are
living facts, not airy abstractions. And the only thing that matters about the
law is the way it handles these facts and a million others. The point is that
legal abstractions mean nothing at all until they are brought down to earth.
Once brought down to earth, once applied to physical facts, the abstractions
become nothing but words – words by which lawyers describe, and justify,
the things that lawyers do. Lawyers would always like to believe that the
principles they say they work with are something more than a complicated way of
talking about simple, tangible, non-legal matters; but they are not. Thus the
late Justice Holmes was practically a traitor to his trade when he said, as he
did say, “General propositions do not decide concrete cases.”
To dismiss the abstract principles of The Law as being
no more, in reality, than hig-sounding combinations of words may, in one sense,
be a trifle confusing. Law in action does, after all, amount to the application
of rules to human conduct; and rules may be said to be, inevitably,
abstractions themselves. But there is a difference and a big one. “Anyone
who pits on this platform will be fined five dollars” is a rule and, in a
sense, an abstraction; yet it is easily understood, it needs no lawyer to
interpret it, and it applies simply and directly to a specific factual thing.
But “Anyone who willfully and maliciously spits on this platform will be
fined five dollars” is an abstraction of an entirely different color. The
Law has sneaked into the rule in the words “willfully and
maliciously.” Those words have no real meaning outside of lawyers’
minds until someone who spits on the platform is or is not fined five dollars
– and they have none afterward until someone else spits on the platform
and does or does not get fined.
The whole of The Law – its concepts, its
principles, its propositions – is made up of “willfullys” and
“maliciouslys,” of words that cannot possibly be pinned down to a
precise meaning and that are, in the last analysis, no more than words. As a
matter of fact, the bulk of The Law is made up of words with far less apparent
relation to reality than “willfully” or “maliciously.” And
you can look through every bit of The Law – criminal law, business law,
government law, family law – without finding a single rule that makes as
much simple sense as “Anyone who spits on this platform will be fined five
dollars.”
That, of course, is why a non-lawyer can never make
rhyme or reason out of a lawyer’s attempted explanation of the way The Law
works. The non-lawyer wants the whole business brought down to earth. The
lawyer cannot bring it down to earth without, in so doing, leaving The Law
entirely out of it. To say that Wagner Labor Act was held valid because five
out of the nine judges on the Supreme Court approved of it personally, or
because they thought it wiser policy to uphold it than to risk further
presidential agitation for a change in the membership of the Court – to
say this is certainly not to explain The Law of the case. Yet to say this makes
a great deal more sense to the layman and comes a great deal closer to the
truth than does the legal explanation that the Act was held valid because it
constituted a proper exercise of Congress’ power to regulate interstate
commerce. You can probe the words of that legal explanation to their depths and
bolster them with other legal propositions dating back one hundred and fifty
years and they will still mean, for all practical purposes, exactly nothing.
There is no more pointed demonstration of the chasm
between ordinary human thinking and the mental processes of the lawyer than in
the almost universal reaction of law students when they first encounter The
Law. They come to law school a normally intelligent, normally curious, normally
receptive group. Day in and day out they are subjected to the legal lingo of
judges, textbook writers, professors – those learned in The Law. But for
months none of it clicks; there seems to be nothing to take hold of. These
students cannot find anywhere in their past knowledge or experience a hook on
which to hang all this strange talk of “mens rea” and “fee
simple” and “due process” and other unearthly things. Long and
involved explanations in lectures and lawbooks only make it all more confusing.
The students know that law eventually deals with extremely practical matters
like buying land and selling stock and putting thieves in jail. But all that
they read and hear seems to stem not only from a foreign language but from a
strange and foreign way of thinking.
Eventually their confusion founded though it is in
stubborn and healthy skepticism is worn down. Eventually they succumb to the
barrage of principles and concepts and all the metaphysical refinements that go
with them. And once they have learned to talk the jargon, once they have
forgotten their recent insistence on matters-of-factness, once they have begun
to glory in their own agility at that mental hocus-pocus that had them
befuddled a short while ago, then they have become, in the most important
sense, lawyers. Now they, too, have joined the select circle of those who can
weave a complicated intellectual riddle out of something so mundane as a strike
or an automobile accident. Now it will be hard if not impossible ever to bring
them back tot hat disarmingly direct way of thinking about the problems of
people and society which they used to share with the average man before they
fell in with the lawyers and swallowed The Law.
Learning the lawyers’ talk and the lawyers’
way of thinking – learning to discuss the pros and cons of, say, pure food
laws in terms of “affectation with a public contract” – is very
much like learning to work cryptograms or play bridge. It requires
concentration and memory and some analytic ability, and for those who become
proficient it can be a stimulating intellectual game. Yet those who work
cryptograms or play bridge never pretend that their mental efforts, however
difficult and involved, have any significance beyond the game they are playing.
Whereas those who play the legal game not only pretend but insist that their
intricate ratiocination’s in the realm of pure thought have a necessary
relation to the solution of practical problems. It is through the medium of
their weird and wordy mental gymnastics that the lawyers lay down the rules
under which we live. And it is only because the average man cannot play their
game, and so cannot see for himself how intrinsically empty-of-meaning their
playthings are, that the lawyers continue to get away with it.
The legal trade, in short, is nothing but a high-class
racket. It is a racket far more lucrative and more powerful and hence more
dangerous than any of those minor and much-publicized rackets, such as
ambulance-chasing or the regular defense of known criminals, which make up only
a tiny part of the law business and against which the respectable members of
the bar are always making speeches and taking action. A John W. Davis, when he
exhorts a court in the name of God and Justice and the Constitution – and,
incidentally, for a fee – not to let the federal government regulate
holding companies, is playing the racket for all it is worth. So is a Justice
Sutherland when he solemnly forbids a state to impose an inheritance tax on the
ground that the transfer – an abstraction – of the right to get
dividends – another abstraction – did not take place
geographically inside the taxing state. And so, for that matter, are all
the Corcorans and Cohens and Thurman Arnolds and the rest, whose chief value to
the New Deal lies not in their political views nor even in their administrative
ability but rather in their adeptness at manipulating the words of The Law so
as to make things sound perfectly proper which other lawyers, by manipulating
different words in a different way, maintain are terribly improper. The legal
racket knows no political or social limitations.
Furthermore, the lawyers – or at least 99 44/100
per cent of them – are not even aware that they are indulging in a racket,
and would be shocked at the very mention of the idea. Once bitten by the legal
bug, they lose all sense of perspective about what they are doing and how they
are doing it. Like the medicine men of tribal times and the priests of the
Middle Ages they actually believe in their own nonsense. This fact, of course,
makes their racket all the more insidious. Consecrated fanatics are always more
dangerous than conscious villains. And lawyers are fanatics indeed about the
sacredness of the word-magic they call The Law.
Yet the saddest and most insidious fact about the legal
racket is that the general public doesn’t realize it’s a racket
either. Scared, befuddled, impressed and ignorant, they take what is fed them,
or rather what is sold them. Only once an age do the non-lawyers get, not wise,
but disgusted, and rebel. As Harold Laski is fond of putting it, in every
revolution the lawyers lead the way to the guillotine or the firing squad.
It should not, however, require a revolution to rid
society of lawyer-control. Nor is riddance by revolution ever likely to be a
permanent solution. The American colonists had scarcely freed themselves from
the nuisances of The Law by practically ostracizing the pre-Revolutionary
lawyers out of their communities – a fact which is little appreciated
– when a new and home-made crop of lawyers sprang up to take over the
affairs of the baby nation. That crop, 150 years later, is still growing in
numbers and in power.
What is really needed to put the lawyers in their places
and out of the seats of the mighty is no more than a slashing of the veil of
dignified mystery that now surrounds and protects The Law. If people could be
made to realize how much of the vaunted majesty of The Law is a hoax and how
many of the mighty processes of The Law are merely logical legerdemain, they
would not long let the lawyers lead them around by the nose. And people have
recently begun, bit by bit, to catch on. The great illusion of The Law has been
leaking a little at the edges.
There was President Roosevelt’s plan to add to the
membership of the Supreme Court, in order to get different decisions. Even
those who opposed the plan – and they of course included almost all the
lawyers – recognized, by the very passion of their arguments, that the
plan would have been effective: in other words, that by merely changing judges
you could change the Highest Law of the Land. And when the Highest Law of the
Land was changed without even changing judges, when the same nine men said that
something was constitutional this year which had been unconstitutional only
last year, then even the most credulous of laymen began to wonder a little
about the immutability of The Law. It did not add to public awe of The Law
either when Thomas Dewey’s grand-stand prosecution of a Tammany hack was
suddenly thrown out of court on a technicality so piddling that every newspaper
in New York City raised an editorial howl – against a more or less routine
application of The Law. And such minor incidents as the recent discovery that
one of Staten Island’s leading law practitioners had never passed a bar
examination, and so was not, officially, a lawyer, do not lend themselves to
The Law’s prestige.
Yet it will take a great deal more than a collection of
happenings like these to break down, effectively, the superstition of the
grandeur of The Law and the hold which that superstition has on the minds of
most men. It will take some understanding of the wordy emptiness and
irrelevance of the legal process itself. It will take some cold realization
that the inconsistencies and absurdities of The Law that occasionally come into
the open are not just accidents but commonplaces. It will take some awakening
to the fact that training in The Law does not make lawyers wiser than other
men, but only smarter.
Perhaps an examination of the lawyers and their Law, set
down in ordinary English, might help achieve these ends. For, despite what the
lawyers say, it is possible to talk about legal principles and legal
reasoning in everyday non-legal language. The point is that, so discussed, the
principles and the reasoning and the whole solemn business of The Law come to
look downright silly. And perhaps if the ordinary man could see in black and
white how silly and irrelevant and unnecessary it all is, he might be
persuaded, in a peaceful way, to take the control of his civilization out of
the hands of those modern purveyors of streamlined voodoo and chromium-plated
theology, the lawyers.
READ THE REST HERE
READ THE REST HERE
